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Drive DeVilbiss Healthcare

Terms and Conditions for Sale of Products

(February 2019)

 

These terms and conditions for sale of Products (these "Terms") are the only terms which govern the sale of the Products by Drive DeVilbiss Healthcare ("Seller") to the buyer named on the applicable Quotation or Order Confirmation ("Buyer"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby ("Contract"), the terms and conditions of said Contract shall prevail to the extent they are inconsistent with these Terms.

The accompanying Quotation or Order Confirmation (together with these Terms and the Contract, if any, the "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Agreement prevails over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend this Agreement.

1.                    Definitions

1.1  "Purchase Order" means a written purchase order or other written offer to purchase Products submitted by Buyer to Seller, which includes a description of the Products, quantity, requested delivery date and a "ship to" address.

1.2  "Price" means the pricing stated in the Agreement or if no pricing is stated in the Agreement, the pricing stated in Seller's Price List, including adjustments (if any) in accordance with the Agreement, exclusive of taxes, shipping and insurance.

1.3  "Price List" means Seller's standard pricing offered for the sale of the Products, as amended from time to time by Seller in its sole discretion.

1.4  "Products" means the equipment (including any software embedded therein), parts, materials, supplies and other goods identified in the Purchase Order, Quotation or Order Confirmation.

1.5  "Specifications" means Seller's published description of the Product form, fit, features and functions.

2.                    Purchase Orders; Inspection

2.1  Buyer shall issue Purchase Orders or requests for Quotations to Seller via e-mail, EDI or other format agreed upon by the parties. Unless otherwise specified in the Quotation, Seller's Quotation shall expire thirty (30) days from its date and may be modified or withdrawn by Seller before receipt of Buyer's acceptance.  Upon Buyer’s timely acceptance of a Quotation, Seller will treat the Quotation as a Purchase Order.  Seller may accept or reject any Purchase Order, in whole or in part, in its sole discretion, unless it originated as a Quotation and was timely accepted by Buyer, in which case Seller will be deemed to have accepted the Purchase Order. Buyer may not modify or cancel any Purchase Order once accepted by Seller without Seller's written consent.  All Seller’s Quotations and Order Confirmations shall be subject to these Terms and the parties’ written Contract, if applicable.

2.2  Buyer shall be deemed to have accepted the Products at the time of delivery unless Buyer notifies Seller in writing of its rejection or revocation of acceptance of the Products within seven (7) days of receipt by the Buyer and furnishes such written evidence or other documentation as required by Seller.  Seller, upon such notification from Buyer, shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to the location designated by Seller. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer's shipment of Nonconforming Products, ship to Buyer, at Seller's expense and risk of loss, the replaced Products to the shipping address specified in the original Order. Buyer acknowledges and agrees that the remedies set forth in this Section 2.2 are Buyer's exclusive remedies with respect to rejection or revocation of acceptance of the Products, notwithstanding any provisions of the New York Uniform Commercial Code or other applicable laws to the contrary.

3.                    Price; Payment

Unless otherwise stated in the Contract, Quotation or Order Confirmation, Seller may increase the Price for any Product at any time.  Buyer shall pay Seller for the Products by paying all invoiced amounts in USA dollars, without set-off for any payment due from Seller, within thirty (30) days from the invoice date. For each calendar month, or fraction thereof, that payment is not made when due, Buyer shall pay a finance charge computed at the rate of 1.5% per month on the overdue unpaid balance, or the maximum rate permitted by applicable law, whichever is less.  Buyer shall be responsible for and shall pay upon demand Seller’s attorneys’ fees, costs, and expenses incurred in any legal action filed against Buyer to enforce the Agreement or to recover any sums due and owing, including Seller’s post-judgment collection efforts.

4.                    Deliveries; Title Transfer; Risk of Loss; Storage

4.1  Seller shall deliver Products to Buyer FCA Seller’s Facility (Incoterms® 2010). “Seller’s Facility” means Seller's facility where the Products will be tendered to the Buyer's agent or to a common carrier for transport to the shipping address.  Buyer shall pay all delivery costs and charges or pay Seller's standard charges for shipping service. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and not guaranteed.

4.2  Title to and risk of loss of the Products shall pass to Buyer upon delivery of the Products by Seller to Buyer’s Agent or a common carrier.

4.3  If any Products to be delivered under this Agreement cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its agents, Seller may ship the Products to a storage facility. If Seller places the Products into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller's invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products available to Buyer for delivery.

5.                    Limited Warranty

5.1  For the ninety (90) day period following delivery of the Products (the “Warranty Period”), Seller warrants to Buyer that, at the time of shipment, the Products (i) shall meet any of Seller’s specifications or express warranties which accompany the Products or are agreed to in writing by the Parties and (ii) shall not be adulterated or misbranded within the meaning of the U.S. Food, Drug, and Cosmetic Act (the “Act”) or other similar, applicable laws in the jurisdiction in which the Products are delivered; provided, however, that Seller shall not be liable for any of the foregoing caused by the handling or packaging of the Products by Buyer (the “Limited Warranty”). The foregoing Limited Warranty is in lieu of any other warranty, express or implied, written or oral, including but not limited to any warranty of non-infringement, merchantability or fitness for a particular purpose, and all such other warranties are expressly disclaimed. 

5.2  In the event any Product fails to meet the Limited Warranty (“Nonconforming Product”), Seller shall, at its sole option, repair or replace the Nonconforming Product at no cost to Buyer; or issue a refund or credit to Buyer for the purchase price thereof. Under no circumstances shall the Limited Warranty apply to any Product which has been used with unapproved components or to any Product which has been customized or modified, damaged, reused, or misused. Buyer acknowledges and agrees that the remedies set forth in this Section 5.2 are Buyer's exclusive remedies with respect to any Nonconforming Product, notwithstanding any provisions of the New York Uniform Commercial Code or other applicable laws to the contrary.

5.3  The Seller shall not be liable for a breach of the Limited Warranty unless: (i) Buyer gives written notice of the nonconformance, reasonably described, to Seller within thirty (30) days of the time when the Products reach the Delivery Point; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost; and (iii) Seller reasonably verifies Buyer’s claim that the Products are Nonconforming Products.

5.4  The Seller shall not be liable for a breach of the Limited Warranty if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the nonconformance arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Products; or (iii) Buyer alters, repairs, or conducts testing used to evaluate such Products without the prior written consent of Seller.

6.                    Limitation of Liability

6.1  The total liability of Seller to Buyer for all claims of any kind, other than those arising under the Limited Warranty, shall not exceed (i) the Price received by Seller for the affected Product, or (ii) if Buyer places multiple Order(s) under the Agreement, the Price of each particular Order for all claims arising from or related to that Order, or (iii) ten thousand US dollars ($10,000 USD) for all claims not related to any particular Order or Product.

6.2  Seller shall not be liable to Buyer for any loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, or for any special, consequential, incidental, indirect, exemplary, or punitive damages under any circumstances.

6.3  All Seller liability shall end upon expiration of the applicable Warranty Period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Agreement, before expiration of any statute of limitations or other legal time limitation, but in no event later than one year after expiration of such Warranty Period.

6.4  If Buyer is supplying Products to a third party, or using Products at a facility owned by a third party, Buyer shall either (i) indemnify and defend Seller from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Section 6, or (ii) require that the third party agree, for the benefit of and enforceable by Seller, to be bound by all the limitations included in this Section 6.

6.5  For purposes of this Section 6, the term "Seller' means Seller, its affiliates, subsidiaries, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Section 6 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, whether or not foreseeable, and shall prevail over any conflicting terms.

7.                    Compliance with Laws, Codes and Standards

Buyer shall comply with all laws applicable to its marketing, promotion, resale, distribution, storage, transportation, disposal and post-market surveillance of the Products, and shall comply with all USA and other applicable trade control, importation and exportation laws and regulations.

8.                    Health and Safety Matters

8.1  Buyer shall immediately notify Seller in writing upon becoming aware of any reports of adverse events or other complaints alleging deficiencies related to the identity, quality, durability, reliability, safety, effectiveness, or performance of any Product purchased by Buyer under this Agreement. Buyer shall provide Seller all information reasonably requested by Seller regarding such report or complaint, including, without limitation, the name of the complainant, the nature of the complaint and the part numbers and serial numbers affected. Buyer shall promptly investigate and monitor all such reports and complaints and keep Seller informed on the status and results of Buyer's investigation. Buyer shall maintain complete and accurate records relating to any adverse event report, complaint or Product investigation.

8.2  Buyer shall be responsible for any post-market vigilance or similar activities that may be required under the U.S. Food, Drug and Cosmetic Act, as amended (the "Act") and any similar law in any jurisdiction or territory in which Buyer uses, sells or distributes the Products, and for implementing any recall, market withdrawal or correction regarding Products sold by Buyer. Buyer shall notify Seller promptly if any Product becomes the subject of a recall, market withdrawal or correction, and the parties shall cooperate in the handling and disposition thereof. Buyer shall bear all costs of any recall, market withdrawal or correction except that Seller shall bear such costs to the extent the applicable recall, market withdrawal or correction results from a breach of this Agreement by Seller.

8.3  Buyer represents and warrants that it will not sell or distribute the Products in any jurisdiction or territory until such time as Buyer has obtained all licenses, approvals, permits and authorizations required by the laws and regulations of such jurisdiction or territory; and further provided that such sell or distribution does not violate any laws of the United States of America.

9.                    Indemnification

To the fullest extent permitted by law, Buyer will defend, indemnify and hold harmless Seller, its subsidiaries, affiliates, successors, and assigns, and their respective directors, officers, shareholders, and employ­ees, from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (in­cluding, but not limited to, Seller’s attorneys’ fees and costs) (collectively “Claims”) arising out of or in con­nection with the actions or inactions of Buyer or its employees or agents, including, but not limited to: (i) any misuse or modification of the Products by Buyer, its employees or agents; (ii) any act or omission by Buyer, its employees or agents in contravention of any safety proce­dures or instructions that Seller provides in connection with the Products; (iii) the failure to store or maintain the Products in accordance with said procedures or instructions; (iv) Buyer’s misuse of any Intellectual Property rights which accompany the Products; and (v) Buyer’s unauthorized disclosure of Seller’s Confidential Information.

10.                 Insurance

Buyer shall maintain commercial general liability insurance on current ISO Occurrence form CG 00 01 or equivalent to provide coverage for completed operations, contractual liability insurance against all liabilities assumed herein, including any of Seller’s property within the care, custody, or control of Buyer; and bodily injury, including death, personal injury, and property damage, in a single combined limit of $1,000,000.00 per occurrence.  Upon request, Buyer shall provide Seller with certificates of insurance confirming the existence of the foregoing coverages and naming Seller as an Additional Insured and Loss Payee.

11.                 Force Majeure 

Seller shall not be liable or considered in breach of its obligations under this Agreement to the extent that Seller's performance is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, including, without limitation, acts of God, armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Buyer or Buyer's contractors or suppliers. If an excusable event occurs, the time for Seller's performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable Price adjustment.

12.                 Governing Law and Dispute Resolution

12.1  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction (the "Governing Law").  The parties hereby agree that the United Nations Convention on Contracts for the Interna­tional Sale of Goods ('CISG') does not apply to this Agreement, nor to any other aspect of the relationship between the parties, and application of the CISG is expressly disclaimed and waived.

12.2  Buyer irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement or the transactions contemplated hereby, in any forum other than the U.S. District Court for the Eastern District of New York, or, if such court does not have subject matter or diversity jurisdiction, the courts of the State of New York sitting in Nassau County, and any appellate court from any thereof. Each party further agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Buyer irrevocably and unconditionally consents to the in personam jurisdiction of the foregoing Courts and waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

13.                 General Clauses

13.1  Seller may assign or novate its rights and obligations under the Agreement, in whole or in part, to any of its affiliates, or may assign any of its accounts receivable under this Agreement to any party without Buyer's consent. Buyer agrees to execute any documents that may be necessary to complete Seller's assignment or novation. Seller may subcontract all or part of its duties under this Agreement, so long as Seller remains responsible for the performance thereof. The delegation or assignment by Buyer of any or all of its rights or obligations under the Agreement without Seller's prior written consent (which consent shall not be unreasonably withheld) shall be void.

13.2  If any Agreement provision is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. The parties will endeavor to replace any such invalid, illegal or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid, legal and enforceable.

13.3  The following Articles shall survive termination or cancellation of the Agreement: 1, 2.2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.

13.4  The Agreement represents the entire agreement between the parties with respect to the subject matters hereof. No oral or written representation or warranty not contained in this Agreement shall be binding on either party. Buyer's and Seller's rights, remedies and obligations arising from or related to Products sold under this Agreement are limited to the rights, remedies and obligations stated in this Agreement. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing.

13.5  This Agreement is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Agreement.